McGowan v. City of New Orleans , 4 Teiss. 172 ( 1907 )

MOORE, J.

The question involved in this suit is whether an assignment of the unearned salary of a public officer is against public policy and therefore void. As this question is res nova in this jurisdiction and is one in which the City of New Orleans is greatly concerned, a number of her public servants having assigned their unearned salaries and which assignments the City has refused to honor; and as several suits are pending in this Court involving this issue as raised by the City, the question is certified to the Supreme Court under Art. 101 of the Constitution.

February 18, 1907.

Dec. 17th, 1906.

The assignment of the unearned salary of a public officer is against public policy, and therefore void.

ESTOPINAL, J.

On the 15th day of September, 1905, A. J. Desmond, then the Clerk of Section “B.” of the Criminal District Court, for the Parish /of Orleans, and whose salary, as such, is payable by the City of New Orleans monthly and on his own warrants, sold and assigned his salary for the month of January following, to the plaintiff.

Thereafter the latter made due demand on the City for payment to him of the then earned January salary, and upon the City’s refusal to recognize the assignment and to honor the transfer, this suit followed.

For defense the City sets up the nullity of the assignment, the ground therefor being that the sale of the unearned salary of a public officer is against public policy, and is, therefore, without validity.

There was judgment in favor of the defendant rejecting the plaintiff’s demand, whereupon the latter appealed.

Desiring the instruction of the Supreme Court for a proper decision of the question thus presented, we certified the same to the Supreme Court under Article 101, of the Constitution, formulating the question thus:

“Is the assignment of the unearned salary of a public officer against1 public policy, and, therefote null?”

To this the Supreme Court answered in the affirmative.

(James McGowan vs. City of New Orleans, No. 16, 461, Feby. 4, 1907, not yet reported.)

For this reason the judgment appealed from is not.error, and it is affirmed.